George v. Winn
Filing
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MEMORANDUM OPINION and ORDER Summarily Dismissing the 1 Petition for Writ of Habeas Corpus, Granting the 7 Motion for Summary Judgment, Denying the 9 Motion for Equitable Tolling, Denying a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NOLAN RAY GEORGE,
Petitioner,
CASE NO. 2:15-CV-14057
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
v.
THOMAS WINN,
Respondent.
__________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT
OF HABEAS CORPUS, DENYING THE MOTION FOR EQUITABLE TOLLING,
DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO
APPEAL IN FORMA PAUPERIS
Nolan Ray George, (“petitioner”), confined at the Saginaw Correctional
Facility in Freeland, Michigan, filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging his conviction for first-degree murder, M.C.L.A.
750.316. Respondent filed a motion for summary judgment, contending that
petitioner failed to comply with the statute of limitations contained in 28 U.S.C. §
2244(d)(1). Petitioner filed a motion for equitable tolling in response to the motion
for summary judgment. For the reasons stated below, petitioner’s application for
a writ of habeas corpus is SUMMARILY DISMISSED.
I. Background
Petitioner was convicted by a jury in the Oakland County Circuit Court.
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Direct review of petitioner’s conviction ended on March 4, 2013, when the
Michigan Supreme Court denied petitioner’s application for leave to appeal
following the affirmance of his conviction by the Michigan Court of Appeals.
People v. George, 493 Mich. 938, 829 N.W.2d 597 (2013).
On May 8, 2014, petitioner filed with the trial court a post-conviction motion
for relief from judgment pursuant to M.C.R. 6.500, et seq. After the trial court
denied the motion and the Michigan Court of Appeals denied petitioner’s
application for leave to appeal, collateral review of petitioner’s conviction in the
state courts ended on September 9, 2015, when the Michigan Supreme Court
denied petitioner’s application for leave to appeal the denial of the post-conviction
motion. People v. George, 498 Mich. 871; 868 N.W. 2d 902 (2015).
The instant petition was signed and dated November 10, 2015. 1
II. Discussion
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Sanders v. Freeman, 221 F. 3d 846, 851
(6th Cir. 2000)(quoting Fed. R. Civ. P. 56(c)). To defeat a motion for summary
1
Under the prison mailbox rule, this Court assumes that petitioner filed his
habeas petition on November 10, 2015, the date that it was signed and dated.
See Towns v. U.S., 190 F. 3d 468, 469 (6th Cir. 1999).
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judgment, the non-moving party must set forth specific facts sufficient to show
that a reasonable factfinder could return a verdict in his favor. Id. The summary
judgment rule applies to habeas proceedings. See Redmond v. Jackson, 295 F.
Supp. 2d 767, 770 (E.D. Mich. 2003).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one
year statute of limitations shall apply to an application for writ of habeas corpus
by a person in custody pursuant to a judgment of a state court. The one year
statute of limitation shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1).
Although not jurisdictional, the AEDPA’s one year limitations period
“effectively bars relief absent a showing that the petition’s untimeliness should be
excused based on equitable tolling and actual innocence.” See Akrawi v. Booker,
572 F. 3d 252, 260 (6th Cir. 2009). A petition for writ of habeas corpus must be
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dismissed where it has not been filed within the one year statute of limitations.
See Holloway v. Jones, 166 F. Supp. 2d 1185, 1187 (E.D. Mich. 2001).
Petitioner’s direct appeal of his conviction ended when the Michigan
Supreme Court denied petitioner leave on March 4, 2013. Petitioner’s conviction
became final, for the purposes of the AEDPA’s limitations period, on the date that
the 90 day time period for seeking certiorari with the U.S. Supreme Court expired.
See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Petitioner’s judgment
therefore became final on June 2, 2013, when he failed to file a petition for writ of
certiorari with the U.S. Supreme Court. Holloway, 166 F. Supp. 2d at 1188.
Absent equitable or statutory tolling, petitioner had until June 2, 2014 to timely file
his habeas petition with this Court.
Petitioner filed a post-conviction motion for relief from judgment with the
state trial court on May 8, 2014, after three hundred and thirty nine days had
elapsed on the one year statute of limitations. 28 U.S.C. § 2244(d)(2) expressly
provides that the time during which a properly filed application for state postconviction relief or other collateral review is pending shall not be counted towards
the period of limitations contained in the statute. Corbin v. Straub, 156 F. Supp.
2d at 836. A post-conviction application remains pending in the state courts, for
purposes of § 2244(d)(2), until it “has achieved final resolution through the state’s
post-conviction procedures.” Carey v. Safford, 536 U.S. 214, 220 (2002). The
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tolling of the AEDPA’s one year statute of limitations ended in this case when the
Michigan Supreme Court denied petitioner’s application for leave to appeal the
denial of his motion for relief from judgment on September 9, 2015. See Hudson
v. Jones, 35 F. Supp. 2d 986, 988-989 (E.D. Mich. 1999). Petitioner had twenty
six days remaining after the Michigan Supreme Court denied his post-conviction
appeal, which would have been no later than October 5, 2015, to timely file his
petition with this Court. Because the petition was not filed until November 10,
2015, the petition is untimely. 2
The AEDPA’s statute of limitations “is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). However, “the
2
The Court recognizes that petitioner’s post-conviction motion for relief
from judgment was signed and dated April 25, 2014. (See Dkt. # 8-11). Although
Michigan now recognizes a type of prison mailbox rule, it is applicable only “[t]o
appeals from administrative agencies, appeals from circuit court (both claims of
appeal and applications for leave to appeal), and appeals from decisions of the
Court of Appeals to the Supreme Court.” See Staff Comment to February 25,
2010 Amendment, foll. M.C.R. 7.105, 7.204, 7.205, 7.302. Michigan’s postconviction court rules do not contain a prison mailbox rule for the filing of a postconviction motion for relief from judgment with the trial court. See M.C.R. 6.500,
et. Seq. The federal mailbox rule cannot be applied by a federal habeas court to
determine that a prisoner’s state post-conviction pleading has been timely filed,
where the mailbox rule has not been recognized by that state’s appellate courts.
See e.g. Vroman v. Brigano, 346 F. 3d 598, 603-04 (6th Cir. 2003). However,
even if this Court were to toll the limitations period from the date that petitioner
signed and dated his motion for relief from judgment, this would only give him an
additional thirteen days to timely file his habeas petition with this Court, or until
October 18, 2015. Because his petition was not filed until November 10, 2015,
his petition is untimely even if this Court applies the prison mailbox rule to
petitioner’s motion for relief from judgment.
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doctrine of equitable tolling is used sparingly by federal courts.” See Robertson v.
Simpson, 624 F. 3d 781, 784 (6th Cir. 2010). The burden is on a habeas
petitioner to show that he or she is entitled to the equitable tolling of the one year
limitations period. Id.
In his motion for equitable tolling, petitioner claims that he filled out a CSJ318 Disbursement Authorization (Expedited Legal Mail-Prisoner) form on October
23, 2015 and delivered this form along with copies of his habeas petition that
same day to prison officials to mail to this Court. Although petitioner no longer
has copies of these forms, petitioner argues that the limitations period should be
equitably tolled from the time that he first attempted to mail his habeas petition to
this Court.
Petitioner has presented no evidence, other than his bare assertion, that he
delivered his habeas petition and the legal mail disbursement form to prison
officials on October 23, 2015. Because there is no evidence that petitioner
attempted to mail his habeas petition on this date, petitioner is not entitled to
equitable tolling on this basis. See e.g. Stewart v. Robinson, 65 Fed. Appx. 536,
537-38 (6th Cir. 2003)(habeas petitioner not entitled to equitable tolling based on
claim that he had previously mailed a habeas petition to the federal court, where
there was no evidence of the petitioner’s alleged prior filing; petitioner’s “bare
assertion” that he had mailed his habeas petition to the federal district court prior
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to the one year limitations deadline was insufficient to show that he actually
mailed the petition).
Moreover, even if the Court were to credit petitioner’s assertions, he would
still not be entitled to equitable tolling because the statute of limitations had
already run by October 23, 2015. Equitable tolling does not operate to revive an
expired limitations period. See Downs v. McNeil, 520 F.3d 1311, 1325 (11th Cir.
2008); See also Pinson v. Boynton, No. 2:09-13640; 2010 WL 3245405, * 4 (E.D.
Mich. August 17, 2010). “Events or actions occurring after the expiration of the
limitations period cannot serve to extend that period or excuse [a litigant’s] failure
to comply with the limitations period.” Doan v. NSK Corp., 266 F. Supp. 2d 629,
638 (E.D. Mich. 2003). “[E]quitable tolling functions to halt an already running
limitations period that has not expired; it does not function to revive a stale claim.”
Lewis v. United Air Lines, Inc., 117 F. Supp. 2d 434, 441 (D.N.J. 2000).
Petitioner in his motion for equitable tolling also appears to argue that the
limitations period should be tolled because he suffers from some unspecified
mental or physical disability.
“Illness—mental or physical—tolls a statute of limitations only if it actually
prevents the sufferer from pursuing his legal rights during the limitations period.”
Price v. Lewis, 119 Fed.Appx. 725, 726 (6th Cir.2005). Petitioner’s claim that he
suffers from a physical or mental disability is conclusory and unsupported. The
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AEDPA’s limitations period is not tolled by petitioner’s alleged mental or physical
illness, where nothing in the record suggests that this alleged disability prevented
petitioner from filing his habeas petition on time. Petitioner has failed to show
that he is entitled to equitable tolling. Petitioner’s habeas application is untimely.
The one year statute of limitations may be equitably tolled based upon a
credible showing of actual innocence under the standard enunciated in Schlup v.
Delo, 513 U.S. 298 (1995). McQuiggin v. Perkins, 133 S. Ct. 192, 1928 (2013).
The Supreme Court has cautioned that “tenable actual-innocence gateway pleas
are rare[.]” Id. “[A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
(quoting Schlup, 513 U.S., at 329). Moreover, in determining whether petitioner
makes out a compelling case of actual innocence, so as to toll the AEDPA’s
limitations period, “‘the timing of the [petition]’ is a factor bearing on the ‘reliability
of th[e] evidence’ purporting to show actual innocence.” Id. (quoting Schlup, 513
U.S. at 332). For an actual innocence exception to be credible under Schlup,
such a claim requires a habeas petitioner to support his or her allegations of
constitutional error “with new reliable evidence--whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence--that was not presented at trial.” Schlup, 513 U.S. at 324.
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Petitioner’s case falls outside of the actual innocence tolling exception,
because petitioner has presented no new, reliable evidence to establish that he
was actually innocent of the crime charged. See Ross v. Berghuis, 417 F. 3d 552,
556 (6th Cir. 2005); Holloway, 166 F. Supp. 2d at 1191. Petitioner’s insufficiency
of evidence claim (Claim # 2) cannot be considered by this Court in determining
whether an actual innocence exception exists for purposes of tolling the statute of
limitations period. See Redmond v. Jackson, 295 F. Supp. 2d at 773; Grayson v.
Grayson, 185 F. Supp. 2d 747, 752 (E.D. Mich. 2002).
III. Conclusion
Federal Rule of Appellate Procedure 22 provides that an appeal may not
proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. §
2253. Rule 11 of the Rules Governing Section 2254 Proceedings, which was
amended as of December 1, 2009, requires that a district court must “issue or
deny a certificate of appealability when it enters a final order adverse to the
applicant.... If the court issues a certificate, the court must state the specific issue
or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule 11,
Rules Governing Section 2254 Proceedings; See also Strayhorn v. Booker, 718
F. Supp. 2d 846, 875 (E.D. Mich. 2010).
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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Courts must either issue a certificate of appealability indicating which issues
satisfy the required showing or provide reasons why such a certificate should not
issue. 28 U.S.C. § 2253(c)(3); Fed. R.App. P. 22(b); In re Certificates of
Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of
appealability, “a petitioner must show that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003)(internal quotes and citations omitted).
Having considered the matter, jurists of reason would not find the
procedural ruling that the habeas petition is untimely and cannot be saved by
statutory or equitable tolling debatable. Accordingly, the Court declines to issue
petitioner a certificate of appealability
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
is a lower standard than the standard for certificates of appealability. See Foster
v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of the
denial of a constitutional right, a court may grant IFP status if it finds that an
appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
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R.App.24 (a). “Good faith” requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits. Foster,
208 F. Supp. 2d at 765. Although jurists of reason would not debate this Court’s
resolution of the habeas petition, the issues are not frivolous; therefore, an appeal
could be taken in good faith and petitioner may proceed in forma pauperis on
appeal. Id.
IV. ORDER
For the foregoing reasons, the Court concludes that the habeas corpus
petition was filed outside the one-year limitations period prescribed in 28 U.S.C. §
2244(d)(1)(A). Accordingly, IT IS ORDERED that Respondent's Motion for
Summary Judgment (Doc. # 7) is GRANTED, Petitioner’s Motion for Equitable
Tolling (Doc. # 9) is DENIED, and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner shall be GRANTED leave to
appeal in forma pauperis.
S/Arthur J. Tarnow
HON. ARTHUR J. TARNOW
UNITED STATES DISTRICT COURT
DATED: March 28, 2016
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